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The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

“The
Gulf Cooperation Council (GCC) - a union made up of Bahrain, Kuwait, Oman,
Qatar, Saudi, and the UAE - is facing a major diplomatic crisis due to
political differences between Saudi, Bahrain, and the UAE on one side, and
Qatar on the other. The differences between these countries became public last
month when Saudi, Bahrain, and the UAE cut off diplomatic relations with Qatar,
banned their own nationals from staying in Qatar, deported all Qatari citizens
from their territories, and closed off land borders, airspace, and water
territories for Qataris.

The
future of the GCC is now uncertain, especially after Qatar officially rejected
the demands made the Saudi camp. With no solution to the crisis in sight, it is
important to take a moment to consider what this crisis means for GCC
intellectual property law and how it affects Qatari rights-holders. Even though
the GCC is not as deeply integrated as the EU, the GCC still has a body that
issues a region-wide intellectual property right (the GCC Patent Office), has
some intellectual property laws that apply across the entire region (e.g. the
GCC Trade Mark Law), and has a legal instrument that recognises intellectual
property as a fundamental right (the Gulf Declaration of Human Rights).

Unlike
the EU, the GCC is not a supra-state, has no legal personality separate from
its Member States, and these Member States have not delegated any of their
authorities to the GCC. The GCC also does not have EU-style Directives or
Regulations that are automatically legally binding on any of its Member States.
Decisions made by the GCC are binding on its Member States only if these
decisions are made unanimously. Also, in regard to Qatar specifically,
international law obligations are, for the most part, not self-executing. This
means that even if Qatar ratifies a GCC agreement or any other international
agreement, that agreement will not have the power of law in Qatar without
specific implementation through a domestic legal instrument such as a royal
decree. However, even with all these limitations on the power of GCC, the GCC
has been successful in creating a number of pan-GCC intellectual property
initiatives that are legally operational in Qatar as well as the rest of the
Gulf, and which are now threatened by the current diplomatic crisis.

The GCC
patent is the most obvious Gulf intellectual property right that will be
affected as this crisis continues. Since 1992, the GCC has had a pan-GCC patent
right that enables anyone to apply through the GCC Patent Office in Riyadh to acquire patent protection in the entire GCC. The GCC
patent system is not a system that facilitates making multiple patent
applications through a one-stop shop, but a system that grants an actual single
patent right that applies across the whole region. At the time of its creation
in 1992, Qatar did not have a domestic patent law, which meant that the only
way to acquire patent protection in Qatar at that time had to be done at the
GCC level. However, all GCC Member States now have their own national patent
systems in addition to the GCC patent system, but the GCC patent system remains
as a parallel system that can be used to acquire patent rights with a much
larger geographical scope.

Even
though the GCC Patent Office is based in Riyadh, applying for patent protection
at the GCC Patent Office can be done online and does not require travelling in
person. Therefore, the current ban of Qatari nationals in Saudi should not, on
its own, restrict the ability of Qatari nationals to apply for GCC patents.
However, the GCC Patent Appeal Committee, which examines challenges made to
revoke a patent, includes two nationals of each Member States. The two Qatari
nationals who are members of this committee will not be able to attend any
hearings that take place at the GCC Patent Office under the current blockade. Normally,
one of the conditions for the meeting of this committee to be valid is for at
least one committee member from each State must be present. The inability to
have a valid meeting of this committee is not problematic just for Qatar, but
for the proper legal functioning of the entire GCC Patent System. However,
if a State has no representation in a single meeting, the regulations require
the meeting to be postponed for two weeks, and if there are still no attending
committee members from that same State, the meeting can be considered valid if
all other conditions are met. Therefore, the inability of Qatari committee
members will not necessarily affect the operation of the GCC Patent Office,
even though Qataris will not be able to have a say in the decisions of the
Appeal Committee.

If
the blockade imposed by Saudi, the UAE, and Bahrain results in ejecting Qatar
out of the GCC entirely, it is unlikely that Qatar will be able to remain as
part of the GCC patent system without being a member of the GCC – because
the GCC Patent System operates within the GCC legal system. The GCC Patent
Regulations explicitly define its scope of application as the GCC, and the body
responsible for issuing its implementation codes is the Ministerial Council – a
body within the GCC structure. If Qatar is officially no longer part of the GCC
Patent System, the scope of the protection granted by the GCC patent will
shrink from six States to five States – which will make the GCC patent somewhat
of less value to inventors. That being said, being able to apply for a GCC
patent is not connected with membership to the GCC. Anyone from any nationality
may apply for a GCC patent irrespective of nationality, and Qataris will not
have any legal barriers from applying for one.

While
GCC patents will not be protected in Qatar if Qatar is no longer part of this
system, Qatar can still offer patent protection through its domestic patent
system, which is independent of the GCC.

In
addition to the patent protection, the GCC has a region-wide policy for
trademark protection through the GCC Trade Mark Law. On the one hand, the
GCC Trade Mark Law is more pervasive than the GCC patent system because it does
not allow Member States to have their own domestic alternative to it, but on
other hand, it is less significant than the GCC patent system because it does
not create a pan-GCC trade mark right, and instead merely unifies trade mark
law across the whole GCC. Under this law, individuals are still required to
register their trade marks in each Member State through the domestic competent
authority and there is no central body that can accept trade mark registration
for the entire region. The adoption of this unified law requires individual
action of each of the Member States. Qatar has issued a royal decree to adopt
the original version of the GCC Trade Mark Law in 2002 as well as the most
recent version of the law in 2014, but it does not appear that Qatar has
domestically implemented the executive regulations that are necessary for the
2014 law to enter into force.

The SandKat is the only cat living foremost in true deserts(see Wikipedia)

The
diplomatic crisis of Qatar is unlikely to have any effect on the operation of
the GCC Trade Mark Law in Qatar. Even though it is called
the GCC Trade Mark Law, its scope of application is purely domestic.
Qatar has implemented the GCC Trade Mark Law into its domestic legal system
through a royal decree and from the very beginning made simple adaptations to
the text to make the GCC law operate within the Qatari legal system. For
example, Article 2 of the Qatari implementation of the
2014 GCC Trade Mark Law stipulates
that the executive regulations are to be issued by the Qatari Minister of
Economy and Commerce – not the GCC Commercial Cooperation Committee. According
to the Qatari implementation of this law, the GCC still has the authority to
interpret the law and propose amendments. However, Qatar can easily amend these
GCC-related provisions if it chooses to do so.

In
addition to these two forms of intellectual property, the GCC recognises the
moral and material interests of authors as a fundamental right in the Gulf
Declaration of Human Rights of 2014. This declaration appears to provide a
higher status to intellectual property than what is offered by the Qatari Constitution, which does not recognise intellectual property as a fundamental right
beyond a mention that the State has a duty to ‘foster, preserve and help
disseminate the sciences, arts and national cultural heritage, and shall
encourage scientific research’. However, the Gulf Declaration of Human Rights
is not a legally binding instrument and was not made to be ratified by
individual GCC Member States, so it does not give rise to any legal rights that
could be lost by the current blockade that Qatar is facing.

All
the Member States of the GCC are also members of the WTO, and therefore the
failure of Saudi, the UAE, or Bahrain to respect the intellectual property rights
of Qataris is probably going to be in violation of their WTO obligations
regardless of Qatar’s membership to the GCC. Qatar, Saudi, and the UAE, are
also members of the original Arab Copyright Treaty, which means that their
failure to respect the rights of Qatari authors is also a violation of this
regional treaty.

The
GCC is undergoing a crisis and it is impossible to predict how its Member
States are going to respond to the legal challenges imposed by the reality of
the situation. Apparently, Qatar is already considering using the WTO dispute settlement
mechanism (for matters unconnected to
intellectual property), and Bahrain has made a statement justifying the actions
taken against Qatar on national security grounds. We will just have to wait and see what happens next.”

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